President Bush to sign Mt. Soledad Cross legislation

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Aired 4/19/09

Today promises to be a major landmark in the 17 year long battle over San Diego's Mount Soledad Cross. President George Bush is scheduled to sign legislation in the Oval Office to annex the land under the Cross, and put it under the control of the Federal Department of Defense. This shifts the legal battle over whether the cross violates the separation of church and state from the state to the federal level. KPBS reporter Alison St John has more.

What makes the Mount Soledad Cross impressive is not so much its somewhat ugly breeze block construction as its splendid location. From up close, the white concrete cross soars over the magnificent views of San Diego, spread out 800 feet below.

It's become a potent political symbol, and though its future will likely be determined by the U.S. Supreme Court, politicians like San Diego Congressman Brian Bilbray have stood in its shadow to take a stand.

BILBRAY: "I am very proud to have worked with people like Duncan Hunter fighting to preserve this memorial to the men and women who have served, not just in Korea but all over the world. Now is the time that we need the White House to intervene, now is the time to have the White House finally take possession of this national memorial."

President Bush supports the move to keep the cross where it is, in spite of 17 years of consistent court decisions that it violates the separation of Church and State.

The House of Representatives easily passed the bill to annex the land to the federal government, though San Diego's two democratic congressional representatives, Susan Davis and Bob Filner did vote against it. The Senate took longer, however California's democratic Senators supported the bill, in spite of the constitutional implications. Senator Diane Feinstein:

FEINSTEIN: "I think it depends on the history and the context of the cross. That's a cross that's been there for a long time it had significance to a community."

Ironically the history of the cross points clearly to its religious purpose. The San Diego Union newspaper wrote in 1954 when the present cross was erected, quote, the cross will be the scene of Easter sunrise services in future years, as two other crosses were in previous years.

But Senators Feinstein and Boxer have seen the writing on the wall. It is an election year and not only have 76 percent of San Diegans voted to keep the cross where it is, the symbol has attracted national attention. At a recent demonstration under the cross, Rees Lloyd of the Defense of Veterans Memorials Project of the American Legion rallied his supporters.

LLOYD: "Today we are giving notice to every agnostic and every atheist, every mincing self-appointed, self righteous secular attorney or member of the ACLU that we are going to fight, we're going to fight you in every court action and if we have to we're going to fight you in the streets, but we will win in the end."

The specter of hundreds of San Diegans chaining themselves to the cross to prevent it from being removed was avoided when the U.S. Supreme Court stepped in to issue a stay last month.

Justice Anthony Kennedy was influenced by the shifting political winds. In his ruling he wrote, quote, Congress's evident desire to preserve the memorial makes it substantially more likely that four justices will agree to review the case.

By moving the case from the state to the federal level, cross supporters have not dodged the constitutional issue. But the legal precedence in connection with the federal constitution has loopholes.

Recent cases have redefined how to apply the so called Establishment clause of the federal constitution, allowing some religious symbols on government property if they have cultural significance.
Yet Barry Lynn Director of Americans United for the Separation of Church and State says the Mount Soledad Cross is the most direct challenge to the constitution so far.

LYNN: "You know the cross is a uniquely Christian symbol whether Jesus is on the Cross or not. This cross essentially ignores the service of non Christian men and women to the Korean war effort for which it was originally built."

Glen Smith a professor of government Law at Cal Western School of Law says if the Supreme Court takes the case and eventually rules the cross can stay on Mount Soledad, it would be more than simply expand the way the separation of church and state is defined.

SMITH: "It certainly would be stretching the current law to uphold the cross under the Establishment clause and many people say it would break, it would mean the separation of church and state has crumbled."

The President's signature today will automatically trigger the transfer of the land under the cross to the Federal Government.

But Attorney James McElroy has already filed a complaint in federal court in San Diego against both the city and the federal government, asking a judge to void the land transfer as a violation of both the state and federal constitutions. McElroy believes he has the weight of U.S. legal precedence behind him.

MCELROY: "All of the case law involving crosses on federal land involving interpretation under the establishment clause instead of the California Constitution are all in my favor there's not a single case against me, every cross on federal land that's been decided by the US constitution has ruled they're unconstitutional."

A Federal judge has agreed to issue his ruling on McElroy's suit as early as September. So the President's signature today marks the beginning of a whole new legal chapter of the Mount Soledad Cross saga. Alison St John, KPBS News.

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